Homart Development Co. v. Sgrenci

• Decision Date: 14 July 1995
• Citation: 662 A.2d 1092,443 Pa.Super. 538
• Parties: HOMART DEVELOPMENT CO., Appellee, v. Thomas SGRENCI t/a TG's Deli, Appellant.
• Court: Pennsylvania Superior Court

Page 1092

662 A.2d 1092

443 Pa.Super. 538

HOMART DEVELOPMENT CO., Appellee, v. Thomas SGRENCI t/a TG's Deli, Appellant.

Superior Court of Pennsylvania.

Argued May 10, 1995.

Filed July 14, 1995.

Karen L. Saraco, Langhorne, for appellant.

Daniel J. Dugan, Philadelphia, for appellee.

Before ROWLEY, P.J., and WIEAND, McEWEN, CIRILLO, DEL SOLE, KELLY, POPOVICH, FORD ELLIOTT and SAYLOR, JJ.

McEWEN, Judge.

This appeal, taken from an order which dismissed the petitions to open a judgment for money as well as a judgment for possession, both confessed against appellant Thomas Sgrenci by appellee Homart Development Co., pursuant to the terms of a commercial lease, requires that we decide ¹ whether the trial court erred in concluding that appellant had not presented sufficient evidence to create a jury question as to whether the terms of the lease had been breached by appellee. Appellee, however, contends that, even if we find that sufficient credible evidence was produced to create a jury question, appellant is not entitled to any relief as his signature on the tenant estoppel certificate precludes any relief based upon conduct occurring prior to December of 1990. Our study compels the conclusion that both the money judgment entered for all future rents due under the ten-year lease and the judgment for possession of the leased premises ² must be opened so as to enable litigation of the issue of which party breached the lease, as well as a determination of the amount of damages resulting therefrom. We, therefore, reverse and remand.

Appellant became a commercial tenant of the Neshaminy Mall in December of 1985 pursuant to an assignment of a ten- year lease entered into in July of 1983 between Donuts Galore and the owner of the Neshaminy Mall. Thereafter, in 1989, appellant, who operated a donut shop in the 945 sq. ft. leased space, was approached by the management of the mall, and asked to consider becoming a part of a planned "Food Court". Negotiations ³ between the parties resulted in appellant terminating his prior lease and entering into a new 10-year lease on March 16, 1989, which provided, inter alia:

ARTICLE 1. BASIC LEASE PROVISIONS AND CERTAIN DEFINED TERMS

1.1 Date of Lease: March 16, 1989

1.2 "Landlord": U.S. 1 AND BRISTOL ROAD ASSOCIATES

1.3 Address of Landlord:

c/o Strouse, Greenberg & Co., Inc.

1626 Locust Street

Philadelphia, Pennsylvania

29204

1.4 "Tenant": THOMAS SGRENCI

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1.6 Tenant's Trade Name: "TG'S DELI"

1.7 "Demised Premises": Food court space FC-9, consisting of approximately 730 square feet.

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A delicatessen for the retail sale of the following items in prepared form for on and off premises consumption (i) the following sandwiches: corned beef; pastrami; beef brisket; roast beef, turkey; ham; swiss; tuna salad; chicken salad; egg salad; American cheese, seafood salad and Reuben; (ii) hoagies; (iii) the following cold platters: tuna salad; fruit and cottage cheese; (iv) the following hot platters: beef brisket; turkey breast; corned beef; hot pastrami; hot ham; and macaroni and cheese; (v) soups; and as incidental thereto the sale of the following in prepared form for on and off premises consumption: (a) the following side dishes: potato pancakes; cheese blintzes; cole slaw; potato salad; macaroni salad; french fries; onion rings; pasta salad; orange juice; sauerkraut and "vegetable of the day"; (b) the following breakfast items: muffins, bagels, danish and hard roll with butter or cheese; (c) the following non-alcoholic beverages: coffee; tea; lemonade; hot chocolate and plain carbonated sodas; and (3) the following desserts: cheesecake; donuts; danish; brownies; cookies; fudge and chocolate. Except for the items specifically set forth above, Tenant shall not sell any other foods or beverages. Without enlarging upon what Tenant may sell it is specifically understood that Tenant shall not sell: any form of hot dog except that Tenant may sell Kosher hot dogs only; sausage; chili; ice cream; yogurt; oriental food; pizza; Italian food; cinnamon buns; hamburgers; fried chicken; and fruit drinks other than lemonade; orange juice and soda such as grape or cherry soda. [emphasis supplied]

Landlord agrees that so long as Tenant remains in good standing pursuant to the terms of this Lease and as long as the Food Court (as defined in Rider Section # 4) shall not be altered substantially in size or configuration, that it shall not lease any space in the Food Court to a "Delicatessen" or "Delicatessen Operation". As used in the immediately preceding sentence, the terms "Delicatessen" or "Delicatessen Operation" shall be construed to mean an operation that specializes in the preparation and sale of cooked meats, salads and sandwiches which are typically offered in Jewish, Italian and other European type delicatessens.

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ARTICLE 26. REMEDIES

26.1

A. ....

B. Tenant agrees and it is hereby made a condition of this Lease that if Tenant shall fail or omit to pay rent, additional rent, or charges herein reserved as rent, on the days and at the place where the same are made payable (after written notice as hereinbefore provided), or if Tenant shall fail in the performance and/or observance of any of the other covenants, conditions, terms and agreements of this Lease, after written notice (for such defaults as require notice as hereinbefore provided); or if any other default shall occur....:

(1) This Lease shall at the option of the Landlord cease and determine, without any right on the part of Tenant to save the forfeiture by payment of the rent due or other performance of the conditions, terms, or covenants thus violated, and Landlord shall at once become entitled to receive from Tenant damages which shall be equal to the difference between the aggregate rentals reserved under the terms of this Lease for the balance of the term, less an adjustment for interest at the legal rate, and the fair rental value of the demised premises for that period determined as of the date of such termination.

(2) Without terminating the Lease, Landlord may re-enter and repossess the Demised Premised, breaking open locked doors, if necessary, and may use as much force as necessary to effect entrance without being liable to any action or prosecution for such entry or the manner thereof, nor shall Landlord be liable for the loss of any property upon the premises. Landlord may thereupon lease the Demised Premises to any other person upon such terms as Landlord shall deem reasonable entirely at Landlord's discretion and for a term within or beyond the term of this Lease and Tenant shall remain liable for any loss in rent for the balance of the then current term together with any expenses or costs incurred by Landlord in re-renting the premises, such as the payment of commissions, the making of alterations, or otherwise.

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26.6 On the occurrence of any of the foregoing acts of default (and after notice as hereinbefore provided) Tenant agrees that the whole rent for the balance of the term and all other sums payable hereunder as rent for the balance of the term, or any part thereof at the option of the Landlord, shall immediately without act or further notice become due and payable as if by the terms of this Lease the same were payable in advance, and Landlord may immediately proceed to distrain, collect, or bring action for the said whole rent or such part thereof as aforesaid, as rent being in arrears, or may enter judgment therefor in an amicable action as herein elsewhere provided for in case of rent in arrears, or may file a proof of claim in any bankruptcy or insolvency proceedings for such rent, or Landlord may institute any other proceedings whether similar to the foregoing or not, to enforce payment thereof.

26.7 For the purpose hereof, the rent for the balance of the term as used herein shall be deemed to be the aggregate of the fixed annual minimum rent payable at the time of such default or breach by Tenant, plus the annual average of the percentage rent theretofore paid or payable by Tenant for the three (3) years last preceding such breach or default, or if three (3) years of the term hereof have not then elapsed, then the average of the annual percentage rent theretofore paid or payable by the Tenant.

26.8 In the event of any default by Tenant either in the payments of rent or any other charge herein reserved, or in the performance of any of the terms, conditions, promises and covenants herein set forth, either during the original term of this Lease, or any extension thereof, Tenant hereby empowers any Prothonotary or attorney of any Court of Record to appear for Tenant in any and all actions which may be brought for rent or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by Tenant and/or to sign for Tenant an agreement for entering in any competent Court an amicable action or actions for the recovery of rent or other charges or expenses, and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of the rent specified in this Lease and then unpaid including, at Landlord's option, the rent for the entire unexpired balance of the term of this Lease, computed as aforesaid, and other charges, payments, cost and expense reserved as rent or agreed to be paid by Tenant, and for interest and costs together with an attorney's commission of five (5) per cent. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as any of said rent or other charges reserved as rent shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and/or during any extension or renewal of this Lease and after the expiration thereof at any time.

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26.10 In any amicable action of ejectment or for rent in arrears, Landlord shall first cause to be filed in such...